Let forced heirship swing

Thu 12 December 2019, Philippe Ropenga Forced heirship

The first post that has been posted on this blog deals with forced heirship. Forced heirs were opposed to the surviving spouse and French private international law had to be applied.¹ We moved on to see that French law and English law seemed to converge: French law eases the constraint of forced heirship while English law expects the testator to make reasonable provision for a child, even if a child and mother had been estranged.² This trend requires to take local legal practices into account when dealing with international matters.³ The spotlight has been put on this trend in 2017 and several posts about forced heirship have been published on this blog.⁴ As you all already know from the first post of this blog, forced heirs who are designated by law should receive a share of the estate of the deceased person, notwithstanding his or her will. A forced heir can renounce his share in the estate, but the testator cannot deprive a forced heir of his share. This very simple description of forced heirship is a good starting point. If an estate is a cake, forced heirship can be defined as a share that is safeguarded by law. A practitioner may wonder whether some goods, such as a life insurance policy⁵ are part of the cake. Nevertheless, is an estate a cake? The trend that has been identified in English and French cases does not match the cake-like approach of an estate. Reasonable provisions are not imposed only because people are entitled to anything as heirs but because they need financial support. The reasonable provision requirement thus complies with the principle of testamentary freedom in English law. It has been seen on this blog that French courts that have allowed the application of a foreign law that ignored forced heirship made sure that this choice of law was not capricious. There also has been a case involving a spouse who succeeded in claiming an alimentary pension from the estate not on the ground of forced heirship but because the small estate could afford it and because she was in need. I suggest that you take another look at this earlier post⁶ since reasoning is very important to understand how forced heirship works in practice. The analysis of a matter involving forced heirship should not be limited to looking for forced heirs and taking care of formalities.⁷

Please remember that the surviving spouse often plays an important part in succession disputes since he, or more often she is a forced heir in French law. Furthermore, a widow has her views about a succession and may also use her rights to protect what she thinks is the intention of the deceased.⁸ Forced heirship emphasises the importance of the surviving spouse in French law. It may give him confidence when making a claim, but he still has to decide what to claim and on what ground. A court will examine the intention of the deceased to see whether claims made by heirs match the intention of the deceased, especially when dealing with very personal choices such as those regarding the latter's funeral.⁹ A French court is likely to be more lenient when examining the intention of the deceased in an international context than in a domestic one. Please remember however that French approach of will drafting¹⁰ and capacity¹¹ may be more formalistic than that of your jurisdiction.

If forced heirship is not an unavoidable part of French law because of its effect on legal decisions, what makes it unavoidable?

It is unavoidable because it swings! It swings like a pendulum and ensures that law does not go too quickly in one direction or the other. Capricious estate planning is sanctioned on the ground of forced-heirship avoidance while forced heirship allows long-term estate planning to take effect. A similar phenomenon explains how testamentary freedom is preserved under English law while a testator may be expected to make reasonable provision for an heir. Please note that under the current state of French law, reasonable provisions do not counterbalance testamentary freedom. Testamentary freedom is counterbalanced by forced heirship in French law. Claiming an alimentary pension from the estate does not affect forced-heirship rights; it allows the claimant to get financial support from the estate.

One cannot get a precise picture of forced heirship by looking at an estate to figure how to divide it into shares. Forced heirship structures French law far beyond liquidation issues. Cases that are analysed on this blog are part of French succession law even if legal trends that are mentioned here may be unnoticed by someone who is not used to French legal practice and simply reads French black letter law. It is a Christmas cracker. Hence, I am sure that you will not mind if I write a comment that may seem too obvious to be taken seriously. If you gaze at the sky in December, you are likely to see one star shinning bright, or Rudolph, if you have been nice. Stars however will not tell you anything about current trends in French succession law. If forced heirship is diminished one day, it may be partly unnoticed since the reduction of the share that is left to forced heirs would attract great attention and other changes that would be less spectacular would not seem as interesting. The future of forced heirship would be compromised if another concept such as that of reasonable provision becomes more important. Force heirship would then lose its ability to swing to counterbalance testamentary freedom. French law would then be more similar to English law, notwithstanding the fact that forced heirship would still be part of French black letter law after this change of paradigm.

In brief, forced heirship don't mean a thing if it ain't got that swing, as Duke Ellington and Irving Mills would have said, had they been interested in French succession law. I wish you a Merry Christmas and a peaceful New Year, full of health and happiness.

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